Delhi High Court
Eshan Saraf vs Guru Gobind Sing Indraprastha ... on 5 April, 2019
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th April, 2019
+ W.P.(C) 7640/2018
ESHAN SARAF ..... Petitioner
Through: Mr. R.K. Saini, Adv.
versus
GURU GOBIND SING INDRAPRASTHA UNIVERSITY &
ANR. ..... Respondents
Through: Ms. Anita Sahani, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 05.04.2019
1. An order, no. F 161/12/2002-03/Admn Pol/DDTE/Pt.File/63,
dated 10th February, 2004, issued by the Department of Training and
Technical Education (hereinafter referred to as the "DTTE")
Government of Delhi, constitutes the fulcrum of the controversy in the
present case. The relevant passages from the said order, therefore,
merit reproduction thus :
"A. ADMISSION
GGS IP University shall conduct the Common Entrance
Tests (CETs) for all AlCTE approved Degree level
Programmes offered at its affiliated Institutes and shall
also conduct admissions in respect of Delhi seats i.e. 85%
of the sanctioned intake, except for BHMCT for which
15% of all India seats shall also be filled up by the
G.G.S.I.P. University. The merit of students in the CET
shall be the criteria for admission. GGSIP University
shall ensure that the CET is conducted in a just and
transparent manner and the admission of the candidates is
done on the basis of their rank and merit. Appropriate
counseling up to two rounds, as per the current practice,
shall be provided by the University in a manner so that
seats in different professional Institutions are filled up
through a fair, just and transparent manner. The schedule
of counseling be so arranged as to minimize the
possibility of dropouts. The dropout seats subsequent to
second counseling shall not be filled up by the university
or by the concerned institute in any programme.
Minimum eligibility conditions in the qualifying
examination may be specified by the university as per
their parameters.
There shall not be any provision for Group Discussion
and Interview for deciding the inter-se-merit. Rank of the
students attained in the CET shall be the criteria for
admission on merit for all the programmes.
Joining the CET shall be a pre-requisite condition for re-
validation of the NOC and/or continuation till such time
an Institute opts out for having an association of their
own to conduct a separate entrance examination duly
approved by the competent authority.
15% of the sanctioned intake in each programme in
respect of Engineering programmes, Architecture,
Pharmacy shall be filled on the basis of the merit attained
by the candidate in the All India Engineering,
Architecture & Planning and Pharmacy Entrance
Examination (AIEEE) conducted by Central Board of
Secondary Examination (CBSE). These seats shall be
allocated by CBSE or filled by institute as per guidelines
of CBSE following the minimum eligibility conditions of
GGSIP University.
15% seats of the sanctioned intake with regard to
admission to MBA (Master Of Business Administration)
shall be through one of the five national entrance
examination namely CAT (conducted by IIMs), JMET
(conducted by NTs), MAT (conducted by AIMA),
ATMA (conducted by AIMS) and XAT (conducted by
XLRI). The concerned institute shall make the admission
based upon the relative merit of the candidate on the basis
of the rank attained in one of the five entrance test opted
by the institute after following the minimum eligibility
condition of GGSIP University. The institute shall inform
the university regarding the choice of one of the five tests
prior to publication of prospectus by the university.
Admission to 15% seats of the sanctioned intake for
MCA shall be oh the basis of merit attained by the
candidate as per his rank through an All India MCA
Entrance Test (AIMCAET) conducted by NT, Roorkee.
These seats shall be allocated by IIT Roorkee or filled by
institute as per guidelines of IIT Roorkee following the
minimum eligibility condition of GGSIP University.
For BHMCT programme, admission to all seats (Both for
Delhi Region and Outside Delhi Region) will be
conducted by the university on the basis of merit as per
rank obtained by the candidate in the CET. There shall
not be any Group Discussion and Interview for deciding
the inter-se merit."
2. The petitioner, who is admittedly the ward of a Kashmiri
Migrant, passed his 12th Class Examination in 2015 from the Central
Board of Secondary Education, scoring a commendable 95% in
Physics, Chemistry, Maths, Computer Science and General English.
3. As a sequel to the order dated 10th February, 2004 (supra)
issued by the DTTE, the Department of Higher Education, Ministry of
Human Resource Development, Government of India, issued the
following Circular, to the Vice Chancellors of all Universities, on 12th
March, 2015 :
"F.No.3-1/20I2-NBR
Govt. of India
Ministry of Human Resource Development
Department of Higher Education
Shastri Bhawan, New Delhi
Dated; 12th March, 2015
To,
1. Vice-Chancellors of All Universities,
2. Chairman, AICTE.
3. Chairman, UGC.
4. Education Secretaries of all States/UTs.
Subject: Concession for the wards of Kashmiri
migrants for admission during academic
session 2015-16-reg.
Sir(s)/Madam(s),
I am directed to refer to this Ministry‟s letter No. 3-
I/2012-NER dated 4th June, 2014, regarding provision of
certain concessions for the wards of Kashmiri migrants in
the matter of their admission to the educational
institutions in other parts of the country during the
academic session 2014-15. As Kashmiri migrants
continue to face hardships, it would be necessary to
provide concessions to their wards for their admission.
Accordingly, it has been decided with the approval of
competent authority to extend following concessions to
the Kashmiri migrants in the matter of their admission in
your institutions till further orders:-
(i) Relaxation in cut-off percentage upto 10% subject
to minimum eligibility requirement,
(ii) Increase in intake capacity upto 5% - course - wise.
(iii) Reservation of at least one seat in merit quota in
technical/professional institutions.
(iv) Waiving of domicile requirements.
Yours faithfully,
Sd/-
(DavinderPal Singh)
Deputy Secretary to the Govt. of India"
4. Further, vide letter no. F.No.3-1/2012-NER dated 22nd July,
2016, the Department of Higher Education extended the concession
for wards of Kashmiri Migrants, as provided for, in the afore-extracted
letter dated 12th March, 2015, beyond the academic session 2014-15,
till further orders.
5. As per the procedure followed by the Guru Gobind Singh
Indraprastha University (hereinafter referred to as the „GGSIPU‟),
consequent to clearing the Common Entrance Test, for admission,
candidates were required to fill in a form indicating the order of
preferences for the various institutes as well as the branches in which
they desire to pursue their studies. The petitioner chose only one
branch, i.e. the branch of Computer Science and Engineering
(hereinafter referred to as "CSE"), with his order of preference of
institutes being as under:
Order of Institute Name Branch Name
preferences
1. University School of Information & Computer Science &
Communication Technology, Sector 16C, Engineering (Dual Degree)
Dwarka, New Delhi-110078
2. Maharaja Agrasen Institute of Technology, (1 st Computer Science &
Shift Timings: 08.00 AM to 02.30 PM), Sector- Engineering
22, Rohini, Delhi-110085
3. Bharati Vidyapeeth‟s College of Engineering, (1 st Computer Science &
Shift Timings: 08.00 AM to 02.30 PM), A-4, Engineering
Paschim Vihar, New Dlehi-110063.
4. Maharaja Surajmal Institute Technology, (1st Shift Computer Science &
Timings: 08.00 AM to 02.30 PM),C-4, Janak Engineering
Puri, New Delhi-110058.
5. Ambedkar Institute of Advanced Communication Computer Science &
Technologies and Research, Geeta Colony, Delhi- Engineering
110092.
6. It may be noted that the petitioner secured the 1051 st rank in the
CET.
7. The grievance of the petitioner is that, despite his having
secured the 1051st rank, a student who was ranked 3204th in the CET
and was also a Kashmiri Migrant was admitted, to the University
School of Information and Communication Technology (hereinafter
referred to as the „USICT‟), being the institute of first preference of
the petitioner, albeit in a different discipline, of Electronics and
Communication Engineering (hereinafter referred to as "ECE"). This,
according to Mr. Saini, learned counsel for the petitioner, violated the
principle of merit, on the basis of which wards of Kashmiri Migrants
were, as per the afore-extracted office memorandum dated 10th
February, 2004, to be admitted to institutes under the aegis of
GGSIPU.
8. Mr. Saini has also drawn my attention, in this connection, to a
communication dated 25th October, 2018, issued by the Delhi
Government to the GGSIPU, which opined thus :
"Since admission in J.K migrant quota is given against
Supernumerary Seats in addition to approved intake in
course/institutions as allowed by AICTE and on
allocation by Govt. Of India, M/o Human Resources
Development, University has no valid reasons to have its
rotational policy to restrict choice of course/college to the
candidates and this choice should essentially rest with
eligible candidates and this choice should essentially rest
with eligible candidates in order of their merit in CET. In
other words the candidates in order of their merit in CET
should have first choice of course/institution and then the
next candidate in merit and so on. GGSIP University
should therefore, correct the prevailing practice to be in
line with the above principles. An advisory to Vice
Chancellor, GGSIP University should issue accordingly."
9. Mr. Saini points out that the GGSIPU has, in its counter-
affidavit to the writ petition, accepted the above opinion of the
Government of Delhi, but has submitted that it would be possible to
implement it only with effect from the next academic session.
10. Mr. Saini‟s submission is that, having accepted the said view of
the Government of Delhi, his client could not be made to suffer for the
erroneous application, by the GGSIPU, of the order dated 10th
February, 2004 (supra), issued by the DTTE.
11. Arguing per contra, Ms. Anita Sahani, learned counsel for the
GGSIPU submits that, as there are a number of disciplines in each of
its institutions, the GGSIPU had been following a policy of
earmarking a particular discipline in each institution, every year, in
which the ward of the Kashmiri Migrant would be granted admission.
Thus, she submits, ensured that there was no disharmony and that the
various disciplines were accorded equal status. She seeks to justify
this action, of her client, on the basis of Rule 8 (2) (f) of the Delhi
Professional Colleges or Institutions (Prohibition of Capitation Fee
Regulations of Admissions, Fixation of Non exploitative Fee and other
Measures to Ensure Equity and Excellence) Rules, 2007 (hereinafter
referred to as the „2007 Rules‟), which reads thus :
"One seat will be earmarked for Kashmiri Migrants in
each institution and admission for the same shall be based
on merit through common entrance test conducted by the
designated agency, preference being given to a migrant
registered in Delhi upto the 11th day of June 2001. A
certificate from the competent authority for availing
admission against this quota shall be produced by the
candidate at the time of counseling or the admission, as
the case may be. The designated agency shall earmark the
branch and the unit in which such supernumerary seat is
to be earmarked by the institution."
12. Mr. Saini lays particular emphasis on the concluding sentence
of the afore-extracted rule which empowered the designated agency
i.e. the GGSIPU to earmark the branch and the unit in which the
supernumerary seat is to be marked by in each institution. This, she
would submit, empowered her client to specify a particular branch/unit
in each of the institutions, affiliated to the GGSIPU, to which the ward
of the Kashmiri Migrant was, in each year, to be granted admission.
Applying this principle, she submits that, in the year 2018-19, it was
decided that the ward of the Kashmiri Migrants would be admitted, in
the USICT, to the ECE branch, whereas, in the Bharati Vidhyapeeth
College of Engineering (hereinafter referred to as "Bharati
Vidyapeeth") the supernumerary seat for the Kashmiri Migrant was
allocated to the CSE discipline/branch. As such, being the most
meritorious candidate who had applied for admission to the CSE
Branch, she submits that the petitioner was gradually admitted to the
Bharati Vidhyapeeth, being the third institution, among the institutes
of choice of the petitioner. As the petitioner had not opted for the
CSE branch/stream, she submits that he could not be admitted to the
USICT.
13. She submits that the GGSIPU has been following this practice
since 2015-16.
14. Mr. Saini further submits that, though the first year of the
B.Tech Course in CSE, to which the petitioner had been admitted in
the Bharati Vidyapeeth‟s College of Engineering, is almost over, so
that it would be futile to now admit the petitioner to the first year of
the said Course, the curriculum of the first year of the Course in all the
institutions affiliated to the GGSIPU, and the examination undertaken
by the students is identical. As such, he submits, if his client is found,
by the court, to be entitled to be admitted to the CSE discipline in the
USICT, he may be permitted to join the said institution in his second
year, subject, of course, to his performance in his first year
examination, qualifying him for such admission.
Analysis
15. A bare reading of the order dated 10th February, 2004 (supra) of
the DTTE makes it apparent that the pivotal consideration, in order to
decide the institutions/course to which wards of Kashmiri Migrants
were to be granted admission, to institutions under the GGSIPU, was
merit. It would be completely inadmissible for the GGSIPU,
therefore, to devise any such procedure or practice which would
jettison, or sacrifice, this consideration. The manner in which merit
would operate in such a situation is also obvious. Among the students
who have qualified the CEC, the GGSIPU would be required to
examine, on merit, the students who had opted for any particular
discipline and, depending on their merit, admit them to the institutions
of their choice. In other words, among the students who had applied
for the CSE Branch/discipline/stream, the institutions to which the
students were required to be admitted would have to be decided on the
basis of their comparative merit. Any other interpretation would
completely eviscerate the principle of merit on the basis of which
admission of wards of Kashmiri Migrant was to be effected. Simply
put, if there were two students who had qualified the CET, both of
whom had selected the USICT, as their first option, the more
meritorious between them would be entitled to such admission. If
such admission was to be granted to a student lower in merit, in
preference to a student higher in merit, merely because the GGSIPU
had sought to "earmark", in the USICT, another discipline to be the
one to which the ward of the Kashmiri migrant was to be admitted, it
would amount to granting such admission contrary to the comparative
merit of the candidates, which would clearly violate, not only the
order dated 10th February, 2004 (supra) of the DTTE, but also Rule
8(2)(f) of the 2007 Rules on which Ms. Sahani herself places reliance.
The said Rule clearly states that admission to the seat in each
institution, which was earmarked for Kashmiri Migrants would be
based on merit through Common Entrance Test conducted by the
designated agency. This stipulation can admit only of one
interpretation. In each institution, one seat would be earmarked for a
Kashmiri Migrant. The choice of student, to be admitted against such
seat, would be decided on the basis of the comparative merit of the
students in the CET. If there were more than one candidate in the
CET, who sought admission to a particular institution, it would be
doing violence to the afore-extracted Rule 8(2)(f) of the 2007 Rules to
grant such admission to the candidate lower in merit and deny such
admission to the candidate higher in merit, which is precisely what has
happened in the present case. The decision of the GGSIPU in that
regard, therefore, in my view cannot sustain. Insofar as the
concluding stipulation, in Rule 8(2)(f) (supra), to the effect that the
GGSIPU would earmark the branch and the unit in which the said seat
was to be earmarked by the institution, is concerned, the said
stipulation cannot, in my view, be read in a manner which violate not
only the preceding part of the said Rule - which accords primacy to
merit - but also to the order dated 10th February, 2004 (supra). As Mr.
Saini rightly submits, the only manner in which this stipulation could
be worked, so as to harmonize with the principle of merit, is that, once
the CET results are known, the University would indicate, to the
institutions concerned, the branch/discipline in which the institutions
would have to admit the wards of Kashmiri migrants. This decision
would have to be taken, again, on the basis of the comparative merit of
the students in the CET and the preferential choices of the institution
as submitted by them.
16. The passage, from the letter dated 25th October, 2018 of the
Government of Delhi, addressed to the GGSIPU extracted in para 8
(supra) reflects in my view, the correct legal position. This Court
entirely endorses the said view.
17. It is worthwhile to reiterate, in this context, the fact that the
GGSIPU has itself agreed to implement the said view in subsequent
years. This goes to indicate, that this reading of the policy, as
postulated by the Government of India, is not wholly inpalatable to the
GGSIPU either.
18. From the above discussion, it is quite clear that the petitioner
has been wrongly denied admission to pursue his B.Tech Course in the
CET Discipline in the USCIT. Mr. Saini has correctly pointed out that
the first year of the said course is almost at an end. However, keeping
in mind the fact that the examination, to be undertaken by CSE,
students in all the institutions is conducted by the GGSIPU, and is a
common examination, following on a common curriculum, I am of the
opinion that the suggestion, of Mr. Saini, that the petitioner should be
allowed to undertake the said examination and, subject to his
qualifying therein, be granted admission to the CSE Discipline in the
USCIT in the second year of his B.Tech. Course, is well taken and
commends acceptance. In view of the fact that the seats are
supernumerary in nature, and are, therefore, in excess of the
sanctioned strength of students in the institution, this would not in any
manner affect the distribution of seats in the institution or the strength
of students sanctioned to it.
19. In view thereof, the writ petition is allowed in the following
terms :
(i) The decision, of the GGSIPU, to admit the petitioner to the CSE
discipline in the Bharati Vidyapeeth, in preference to the USICT is
quashed and set aside.
(ii) The petitioner is declared as having been eligible to be
admitted, consequent to the CET 2018-19, to the CSE
Branch/Discipline/Course in the USICT, as the ward of a Kashmiri
Migrant.
(iii) The petitioner would however appear in the first year/second
semester examination as a student of the Bharati Vidhyapeeth, having
undertaken his studies in the said Bharati Vidhyapeeth, for the full
year and shall, subject to his qualifying therein, be admitted to the
CSE Course in the USICT for the second year.
20. The writ petition stands allowed in the above terms, with no
order as to costs.
APRIL 05, 2019/kr C. HARI SHANKAR, J
